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Monkeywrenching Civil Rights: Indiana’s RFRA in Perspective

By Kay Whitlock

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Goodness: an awareness, translated into action, of the intrinsic worth and interdependence of all peoples and ecologies, and the determination to dismantle societal structures that support social inequalities and the violence that accompanies them. Considering Hate: Violence, Goodness and Justice in American Culture and Politics

Several rapidly shifting and competing storylines embedded in the recent furor over passage (and subsequent amendment) of Indiana’s Religious Freedom Restoration Act (RFRA) have produced a great deal of noise but little clarity.

Who actually “won” this battle? Forget mass media narratives. The real answer depends on how closely we’re willing to sift and sort through the civic rubble and rhetorical chaos of this mess.

In the post–Hobby Lobby era, the original Indiana RFRA bill—one of a growing number of states that have some kind of law modeled on the 1993 federal RFRAdeparted from the federal template in significant ways. (The immediate impetus for the federal RFRA was protection of the religious rights of Native Americans.) The Hoosier state explicitly recognized the “free exercise” rights of for-profit businesses on an equal basis with that of individuals and faith communities. Indiana’s law even went further than the U.S. Supreme Court’s Hobby Lobby decision. Moreover, the Indiana statute made this right a defense against private lawsuits brought by individuals—not only against actions brought by government.

This understandably caused concern since anti-LGBT sentiment and legislation are often justified on precisely those grounds. Discrimination against LGBT individuals and communities is not prohibited in Indiana, except in some municipalities. Indiana’s RFRA could undermine even those protections—and be used to justify other kinds of harm.

Resistance to this law was immediate and fierce; it came from entertainers and other celebrities, labor and faith-based organizations, a handful of corporations, and a growing number of cities, states, and elected officials. If this law held, they would not travel to Indiana or expand business there or hold conferences and meetings in the state. Many LGBT-affirming faith leaders, including Unitarian Universalists, spoke out.

Pushback to the resistance was also fierce. When a clickbait-seeking Indiana media outlet found owners of a pizzeria willing to say publicly that they would decline on religious grounds if asked to cater a gay wedding, a flood of criticism ensued. The owners announced the eatery’s closure. RFRA supporters money-bombed Memories Pizza with more than $840,000, elevating it to the status of a martyr/hero.

Modifications to  “clarify” the most incendiary clauses were hastily adopted, but LGBT communities still lack legal confirmation of their inherent civil rights; the law can still potentially be used against them (and others).

Even with changes, this controversy is far from over. And it’s not nearly as simple as mass media and some RFRA advocates have made it out to be.

Sabotaging Civil Rights

In 1996, Suzanne Pharr’s In the Time of the Right detailed the dilemmas we still face. In 1999, Jean Hardisty’s landmark Mobilizing Resentment deepened the discussion even as she reminded social justice activists to resist the right’s expansive, multi-issue agenda without resorting to demonizing the ordinary people who, feeling fearful and aggrieved, embrace it. In 2001, the American’ Friends Service Committee’s In a Time of Broken Bones cautioned that the right “is aggressively (and effectively) promoting a social and economic agenda that rejects the very notion that there is such a thing as a truly inclusive ‘common good.’”

Those discussions remain as relevant as ever. The RFRA controversy is just one aspect of a much larger monkey wrench hurled by the right into the entire framework of civil rights.

I use the term “monkeywrenching” not to besmirch the renegade ecological spirit of Edward Abbey’s classic 1975 novel The Monkey Wrench Gang, but to recall the phrase’s Industrial Revolution origins as sabotage that seeks to wreck machinery of change regarded as oppressive.

How can the framework of civil rights be regarded as “oppressive”? How can those who already enjoy full civil rights be framed as “victims” of those who do not? How is it possible to cast Christianity, with its “most favored status” in U.S. civic life, as a faith under siege by domestic enemies who will stop at nothing to crush it?

These questions help to reveal the essential nature of the conservative-right monkey wrench as it cosmetically morphs over time, adapting to changing circumstances, conditions, and audiences. This monkey wrench gums up the works of movements and mechanisms dedicated to expansive downward distribution of civil rights, legal recognition, education, and economic well being.

This is not because the right is beset by irrational prejudice rooted in ignorance but because its leaders are dedicated to the entirely rational purpose of reinforcing systemic inequalities and structural supremacies. These include white supremacy, heteropatriarchy, belief in the superiority of the affluent over the poor, and belief in the supremacy of human beings over all ecologies and sentient beings.

These interlocking supremacies, foundational to the United States, still have the upper hand today, despite countless freedom struggles that have challenged them. We have won stirring victories, to be sure—abolition of slavery and the Voting Rights Act of 1965, for example, as well as some rights for women, the enactment of the Americans With Disabilities Act, and affirmation of the basic civil rights of LGBT people in some civic arenas. Yet hard-won victories come under relentless new attack, often in seductive new guises. Systemic inequalities remain intact; they produce never-ending structural forms of exclusion, hardship, and violence.

The right has long addressed various issues as interrelated parts of a greater whole. Progressives often see them as parallel concerns but not interdependent—or even necessarily supremacist—in any meaningful way. The result is a cramped, compartmentalized, and inconsistent vision of justice that keeps us trapped in an endless cycle of reactivity to different varieties of civil rights monkeywrenching.

In 2013, for example, Political Research Associates (PRA), a progressive social justice think tank, described in detail how redefining religious liberty—and asserting profound threats to it—is at the heart of a covert campaign against civil rights. Tactics include the legal establishment of “conscience clauses” that permit hospitals, other health care facilities, and health care providers to refuse to provide different kinds of service, care, or referral based on their own religious or other beliefs. This campaign also includes placing draconian new funding and regulatory restrictions on access to abortion rights as well as state RFRAs.

More recently, with the agreement of Utah LGBT advocates, this campaign placed an “individual religious exemption” clause into the state’s new LGBT workplace and nondiscrimination law—a law that would have been impossible to enact without the exemption. PRA rightly refers to this clause as “a Trojan horse” that ultimately will be leveraged to permit “religious institutions and individuals to decide which laws they will or will not follow.” This is part of a larger effort to insert religious exemptions into all sorts of laws, including the long proposed but never passed pro-LGBT federal Employment Non-Discrimination Act (ENDA).

Reproductive justice and the rights of women, children, and LGBT people are the most visible targets of the religious liberty campaign. But particular interpretations of Christianity have always been employed to justify and buttress the translation of supremacist ideology into structural inequality and violence, including the American Indian genocide and chattel slavery.

Another form of monkeywrenching asserts that unless conscious and willful intent to discriminate against or do other kinds of harm to marginalized groups can be proven, challenges to exhaustively documented structural inequalities and violence are groundless. This has adversely affected challenges to the race-based nature of the death penalty, class action discrimination suits, and more.

Seeking to trump federally-guaranteed civil rights protections, the right advances a “states’ rights” agenda in multiple arenas: voting rights, affirmative action, welfare and public assistance, environmental protection, education, health care, reproductive justice, labor and occupational safety, immigration, regulation of public and private institutions, and more.

The relentless push for privatization shatters any possibility of public accountability, turning justice itself into a (race- and class-based) commodity and atomizing any viable notion of the common good. Everything is up for profit-seeking grabs: public resources, spaces, lands, and services; educational, health care, and justice systems; natural resources; and the ability to exercise one’s rights in any meaningful way.

Finally, the guarantee of the right free exercise of religion in the First Amendment is being amplified and distorted in order to trump the guarantee of “equal protection of the laws” in the Fourteenth Amendment.

In Considering Hate Michael Bronski and I make the case that deep cultural and structural change is impossible to achieve when racing from issue to issue and crisis to crisis, seeing each issue and crisis as separate and distinct.

Instead, we might try advancing ideas for societal transformation within a radical new framework of civic goodness. This framework can be animated by a justice vision emphasizing the pursuit of trustworthy, respectful, and non-exploitative social, economic, and environmental relationships within an ethos of collective responsibility and accountability for community well being.

About the Author

WHITLOCK author photo, credit to Phoebe HunterKay Whitlock is a writer and activist who has been involved with racial, gender, queer, and economic justice movements since 1968. She is coauthor of the award-winning Queer (In)Justice: The Criminalization of LGBT People in the United States, coauthor of Considering Hate: Violence, Goodness, and Justice in American Culture and Politics, and cofounder and contributing editor for the weekly Criminal Injustice series at CriticalMassProgress.com. She lives in Missoula, Montana.